SUPREME COURT.

Lyttelton Times, Volume XLVII, Issue 5013, 14 March 1877, Page 3

SUPREME COURT.

Tuesday, Mabou 13. (Before Mr Justice Johnston.) IN CHAMBERS. His Honor took hi* seat at II a,ro. Kb Shadraoe B. Coleman.— Mr Wynn Williams applied to have this ease, under the Debtors’ and Creditors’ Aot, to stand over until Friday. Tho Court granted the adjournment. Bb Vincenzo Almao. —Dr Foster applied, under the Debtors’ and Creditors’ Act, for an order declaring complete execution of deed of assignment, Tho Court made the order. Rb Joseph Prise, Deohabbd. —Mr Wynn Williams moved for an order for leave to issue letters of administration to J. P. Williams, of Opawa, as next of kin in tho Colony. The Court made the order. Rb David Datib.—Mr Garrick moved, under the Debtors’ and Creditors’ Aot, for an order declaring c impleto execution of deed of assignment. Mr Joynt said that ho was instructed to oppose the motion, and he would request that the case stand over for a fortnight. Mr Garrick consented, and tho cose was adjourned accordingly. Rb J. J. Mead and J. J. Pbqh.au, Debtors.— Mr Slater applied, under the Debtors’ and Creditors’ Aot, for an order for the payment of costs. The Court made the order. Be Job Griffiths, Deceased.— Mr Duncan applied for leave to issue probate to James Gibbs Stauton and Edward James Pateman, as executors named in the will. The Court made the order, Rb Charles Joseph Bridge, Deceased. —Mr Duuoan made a similar application for probate to Frances Elisabeth Bridge, of Southbridgo, deceased’s widow. The Court granted the order, whioh was to recite that Archdeacon Wilson and T. S. Duncan were co-executors. Rb Robert Hatlett, Deceased.—Mr Duncan applied for leave to issue probate to William Foatherly, of Leithfield, miller, as executor named in the will. In consequence of an affidavit being defective, leave was given to take the ease off the file. Re William Fierce, Deceased.— Upon the motion of Mr Duncan, probate was granted to Maria Ann Fierce, of Christchurch, spinster, as executrix named in the will. Rb William Ohisnall, Deceased.— Mr Dunoan moved for an order to issue probate to W. D. Wood, as surviving executor named in the will. The Court made the order. Qilmour v. Bruce.— Mr Joynt applied to have the order of reference to arbitration and award herein made a rule of Court. The Court made the order. Rb William Arthur Ghat.— Mr Garrick applied under the Lunatics Aot, 1868, for a commission in the nature of a writ of Be Lunatico Inquirendo. The Court made an order directing an inquiry before a special jury on March 28, upon an issue whether the said W. A. Gray is of -unsound mind and incapable of managing bis own affairs. ConnAL and another v,' Birch.— The hearing of this case, whioh was an application for an injunction, was, by content, adjourned to Friday week, ; Be Jambs Doherty, deceased, intestate.—Mr Loughnan applied! for letters of administration to P. D. Doherty, deceased’s brother. Letters of administration granted on the usual terms. Osborne v. Banks.— Mr Q. Harper obtained leave to amend an order of Jan. 16 last, by eubstitution of amount appearing in affidavit. Andrew and Another v. Young.— ln this ease an order bad been issued for the attendance and examination of a sub-debtor. W. H. Lance, examined by Mr Thompson, deposed that be knew defendant, Edwin Arthur Young, who rented a property from him at 10s a week. Defendant left the Colony on Nor. 2, witness believed surreptitiously, owing to his leaving in the night, having cleared out nearly the whole of his stock, &s. What was left was in witness’ possession, and was of no intrinsic value ; bad no deeds nor any other property belonging to Young in his possession. His Honor : I suppose you would like your costs to be paid you P Witness : 1 should your Honor. His Honor : I will make an order ; you ought never to have been brought here. IN BANOO. Riding of Mabsdbn, County op Grey.— In this case a rule had been granted under the Regulation of Local Elections Aot, 1876, calling on the Resident Magistrate of Greymouth to show cause why be should not be prohibited from proceeding farther herein. Mr J. Harper now appeared, and said he was instructed to abandon the rule. Waste Lands Board Appeal Aot.—W. Robinson appelant, and Clifford and Others, respondents. —His Honor suggested that i bis ease should go to the Court of Appeal if the parties consented, as the contention raised was one of very great importance. The case was adjourned for counsel to consult on the matter.

Rb Debtors’and Creditors’Act, 1876, and Robert Hbrbertbon, debtor. —ln this case the debtor had filed under the Debtors’ and Creditors’ Aot, 1875, and his Estate was liquidated and distributed amongst the proved creditors. At a meeting duly convened the liquidation was declared closed, and the debtor’s discharge was refused. The debtor was then sued by Mr Blackett, a creditor, for the amount of bis claim less the amount received as dividend. Judgment was given in the Resident Magistrate’s Court, Rangiora, in favour of plaintiff for the amount of his claim. The defendant then obtained a rule calling on plaintiff to she* cause why the proceedings should not be stayed, on the ground that plaintiff having proved in the bankruptcy and received his dividend, had made his election, and was precluded from further proceedings. Mr Bamford now showed cause and contended that tho liquidation having been closed and the estate distributed, and the defendant’s discharge having been refused, tho plaintiff was entitled to sue the defendant for the balance of hi» claim, after giving credit for the amount of dividend, and that defendant's objection should have been taken by appeal from the Resident Magistrate’s judgment, and not by rule nisi. Mr Slater, m support of the rule, argued that plaintiff, having proved under the bankruptcy and received his dividend, had made hie election, and could not, therefore, proceed against tho defendant. The Court held that under the Aot of 1875, the debtor’s discharge having been refused by the creditors, the mere fact of the proceedings in bankruptoy having taken place, and plaintiff having received a dividend, did not operate as a bar to his action against the debtor for the balance of his claim. The rule would bo discharged. Rule discharged, with costs. In thb matter of an Appeal from the Resident Magistrate’s Court. Christohuhou, in E George v. Q. J. Slade.— This was an action brought by the endorsee of a promissory note against tho maker thereof to recover the sum of £2O 58, The ease was heard at the Resident Magistrate's Court, Christchurch, on Jan. 24 lost, when the Court gave judgment in favour of tho maker, on the ground of an alteration in tho promissory note. It appeared that the note was made as follow. :—Tho payee, D- Middleton, brought a blank promissory note to Slade, the word " two ” was inserted before the word " months," and the sum of £2O 6s in figures. Slade then signed the note and gave it to Middleton. Subsequently the nolowasfully fillod un and endorsed to George, the holder. The note thou had the word, the “Union Bmk of Australia. Ashburton » added in dlloj •>.» ” I the words “ Union Bank of Australia, Ashburton “such an alteration qs discharged the SsSSSisafeaS ™“Jl»*ti»a, lad 1“ “

alteration, it was an immaterial one. On this point tho ease* cited were—“Exon r. Rutiell, 4> Mo. and Be. BOA.” “ Price ?. Campbell, 4 Campbell, 200." “Warring v. Early, 28 L.J.Q.B. 48." A> to the former point, Oritobly v. Clarence, Swan v. N.B. Australian Co. 82 L.J. Ex. 227, Luokbarrow v. Maaon, 18, loading cmoi. Mr O. Harper, for the reipondont, contendod that the alteration woe material, and prevented tho holder from euing on the note, and oiled " Trooothriok v, Edwin, 1 Stooker, 408,” “ Master* v. Baretto, IL. J. O.P. 60." Tho Court, took time to consider. Mitchell V. Mitchell.— This was an argument on demurrer to declaration. Tho action was for specific performance of a contract. Tho plaintiff i* Mr* Emily Mitchell, and tho defendant, Mr E. W. Mitchell. It appeared from the declaration that the plaintiff had instituted proceeding* in tho Divorce Court ogainst the defendant for a dissolution of marriage ; during tho proceedcertain correspondence between the solicitor* with tho view to a compromise took place, whioh terminated in the withdrawal of the record in pursuance of an arrangement alleged to have been made between tho plain tiff and the defendant through their respective solicitors. To this defendant demurred, on the grounds that the declaration did not set out any such arrangement between plaintiff and defendant os alleged, and further that the alleged compromise made between the solicitors did not bind the parties without authority. Mr Joynt, in support of the demurrer, argued that there woe no consideration set out in the declaration; that the plaintiff being a married woman, could not make euoh agreement; that the appointment of Trustee wa* made after the arrangements had been entered into; and that the agreement entered into by the solicitors did not bind the parties wit hout their authority. Dr Foster, in support of the declaration, contended that it contained auffioient to show that an arrangement had been entered into; that the withdrawal of the record wae in itself a sufficient consideration ; that a compromise made bond fide between the solicitors was binding on the parties without authority or even supposing it was made contrary to authority. And further, he argued that a Court of Equity would decree for the specific performance of an agreement to compromise a suit. Cases cited “Swinfen v Swmfen, 25 L.J.0.P., 303.” “Swinfen v Ohelmford, 29 L.J. Bx 382.” “ Wilson v Wilson, I House of Lords, 138." “Ohoron v Parrot, 32 L.J O.P, 197.” "Priest v Foley, 34 L. J.0.P., 189.” “ Butler v Knight, 36 L J., Ex 66.” “Grady v Perrin, 2 Irish Common Law, 314.” "Berry r Mullen, 5 Irish Equity, 368.” Mr Joynt briefly replied. Hie Honor said be was of opinion that judgment should be for the plaintiff. He thought that the declaration, although not very artistically framed, yet still contained sufficient allegations, either expressed or to be implied from documents, to show that there existed in the Divorce Court a suit, and that a trial of an issue on a question of fact had been ordered by the Court. That negotiations by the Solicitors had taken place for an amicable settlement of the suit in order that the future relations of the parties as married persons might be determined, and embodied in a deed of separation, and that in pursuanoe of those negotiations the record was withdrawn. He was of opinion that the withdrawal of the record was a sufficient consideration. Ho thought that primd facie sufficient appeared that the Solicitors were authorised to such an extent as to bind the defendant, and although there might be some modifications in the agreement necessary, some modifications to be made in the decree for relief, still be thought that there was enough to enable the Court to make a decree. Tne demurrer would be disallowed. Demurrer disallowed, with costs. Leave given to plead on the usual terms. The Court then rose.